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By Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law On August 11, 2011 it was reported that a Federal Appeals Court in Chicago was allowing an American citizen to continue forward his Bivens action against Donald Rumsfeld for his alleged torture in Iraq.  An article on this case is available at http://www.democracynow.org/2011/8/11/us_navy_vet_sues_donald_rumsfeld.  The particular case is, of course, a civil case.  But what about criminal prosecution? Obviously, a Federal Prosecutor such as John Durham could investigate the same facts that arise in the civil case in federal court and determine whether Rumsfeld should be criminally liable under federal law for the alleged torture.  Given the lack of interest in President Obama in looking backward and what has transpired over the past few years, the question arises whether such a prosecution would be started in federal court by a federal prosecutor. Another option which might be also considered would be a state criminal prosecution under relevant state statutes such as conspiracy and crimes like assault, battery, etc in the relevant state where the injured U.S. and state citizen is from.  Each of our states has an interest as a sovereign under its powers to protect its citizens from depredations by the lawless.  And, as James Madison noted so many years ago in the Federalist Papers, our federalism with dual sovereigns provides a double protection to the rights of the people.

By Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law On Sunday, many people may have missed the 60 minutes interview with Ali Soufan, the former FBI agent who was a central interrogator of Al-Qaeda suspects in the early days after 9/11. Everyone should watch that interview (here is a link to a Washington Post story on it http://www.washingtonpost.com/world/fbis-secret-weapon-speaks-out-on-al-qaeda/2011/09/12/gIQALLOwMK_video.html?wpisrc=emailtoafriend) (Update 9/15: the episode is now online at http://www.cbsnews.com/video/watch/?id=7380678n&tag=contentBody;storyMediaBox).  Here is a BBC story from today that captures some of it http://www.bbc.co.uk/news/world-us-canada-14891439 .  Unfortunately the full 60 minutes interview is not up yet. The key points for me are the presentation of the two cases of Abu Jhandal who he interviewed days after 9/11 and the interrogation of Abu Zubaydah - the detainee number one for the introduction of enhanced interrogation techniques. On Abu Jhandal, as is also detailed in the movie the Oath, Jhandal had been in prison in Yemen for 7 months when 9/11 happened and Soufan interrogated him in prison within a week of that horrible day. Soufan read Jhandal Miranda rights and proceeded to deconstruct Jhandal and get him to reveal the Al Qaeda link and 100 pages of information about Al-Qaeda.

(image from illusion.scene360.com) by SpearIt I pen this piece inspired by a once-anonymous law professor and his guilt-ridden revelations about life on the job.  As if at a confession booth behind a screen of secrecy, “Law Prof” sits behind a computer screen and admits his scam.

by andré douglas pond cummings A quiet storm is brewing on Wall Street as the Obama Administration and the Attorney Generals of 49 states ready themselves to sign a settlement agreement with Wall Street banks that will have the effect of bringing to a close consumer lawsuits and state investigations into the root causes of the subprime mortgage crisis. For a flat-fee lump sum (originally said to be $20 billion), Wall Street banks will agree to pay a collective fine (ostensibly to pay for national loan modifications and consumer counseling), while the 50 states and the Justice Department will agree to end all investigations and lawsuits into the mortgage fraud and subprime recklessness that precipitated the meltdown of 2008. One Attorney General is standing in the way of this so-called "progress." According to Gretchen Morgenson at the New York Times, New York AG Eric Schneiderman is standing alone in opposition to a deal that he deems excruciatingly premature. Per the NY Times: "Schneiderman, the attorney general of New York, has come under increasing pressure from the Obama administration to drop his opposition to a wide-ranging state settlement with banks over dubious foreclosure practices, according to people briefed on discussions about the deal. . . . Mr. Schneiderman and top prosecutors in some other states have objected to the proposed settlement with major banks, saying it would restrict their ability to investigate and prosecute wrongdoing in a variety of areas, including the bundling of loans in mortgage securities." Morgenson reports that the big banks are eager to sign a settlement to put the subprime fiasco behind them. The Obama administration is pushing for the settlement to allow Wall Street banks to have a finite settlement figure in order to plan budgets going forward and to assist homeowners with funds for loan modifications, etc. AG Schneiderman is coming under intense pressure to agree to the settlement but is standing against the agreement recognizing that any settlement figure at $20 billion or less, will woefully undercompensate consumers, pensions, investment funds, etc. for the fraud perpetrated by Wall Street in packaging junk mortgages in triple AAA investment vehicles peddled recklessly to investors.

by andré douglas pond cummings The Pew Research Center just published a report that provides a stark reminder that the disparity in wealth between whites, Latinos and African Americans in this country is a nightmarish problem. In the single largest drop since Pew began collecting data in…

By Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law A month or so ago I received a message on a listserv providing a heads-up about the upcoming dedication of the Martin Luther King, Jr. Memorial on the Mall in Washington, D.C.  Events are occurring all this week culminating in the ceremony at 11h00 am on August 28, 2011. Something in my 55 year old soul told me that I had to go.  Maybe it was because back in 1963 in Washington, D.C. I was a little young and I remember my dad being very firm for vague reasons about not wanting us to go outside the house at 501 Upshur Street, N.W. that day.   I don't know. What I do know is that today at the bus stop I had a wonderful conversation with a cleaning lady named Kimbra about the state of the United States right now.  We talked with passion about all the craziness we have seen over these months in the way Americans have acted since Obama became President culminating in the surreal debt ceiling debate and the nonsense we hear on the campaign trail.  We wished that President Obama would show to all that he is free. Maybe John Stewart's Daily Show presentation last night of the complete craziness of the "penny wise and pound foolish" approach of spending cuts only for programs for the middle class and poor without tax increases for millionaires and billionaires got to me.  Maybe it was all the emphasis on coddling the "job creators" while ignoring the 98 per cent of us who are "demand creators" that got to me. Again, I am not sure, but at the bus stop I understood that going back to the Mall to see the unveiling of the MLK, Jr. Memorial is a way for me to proclaim I am free.

Written by SpearIt (image from www.cheezburger.com) States which have legalized medical marijuana are at a critical juncture and may be forced to make some important decisions.  In places such as Arizona and Colorado, doctors, dispensaries, and medical commissioners all face peril for performing their duties—duties which keep with state law, but may breach federal law.  The future of this debate largely hinges on how hard states are willing to fight the federal government, or alternately, whether Congress can effectively intervene. This issue took an important turn this summer in June when the Justice Department issued a memo

The torture of prisoners in U.S. custody isn’t confined to foreign countries. For more than two weeks, inmates at California’s Pelican Bay State Prison have been on a hunger strike to protest torturous conditions in the Security Housing Unit (SHU) there. Prisoners have been held for years in solitary confinement, which can amount to torture. Thousands of inmates throughout California’s prison system have refused food in solidarity with the Pelican Bay prisoners, bringing the total of hunger strikers to more than 1,700.

Serious implications for U.S. foreign policy interests and U.S. compliance with international human rights standards will be at stake if the Supreme Court considers Arizona SB 1070’s constitutionality. The Ninth Circuit’s decision in United States v. Arizona is consistent with U.S. obligations under international human rights law as well as the Constitution. It at least partially protects the significant national interest in the conduct of foreign policy between the U.S. and Mexico as well. The decision upheld U.S. District Court Judge Susan R. Bolton’s preliminary injunction against key portions of Arizona’s infamous “Support Our Law Enforcement and Secure Neighborhoods Act,” also known as Arizona S.B. 1070, as amended by Arizona H.B. 2162.

Written by SpearIt Recently a colleague forwarded me a call for papers by The Journal of Hate Studies at Gonzaga University’s Institute for Hate Studies.  The symposium theme, “Hate and Political Discourse,” immediately captured my thoughts and led me into a daydream daze about potential topics.  It was at once stunning and intriguing that there’s so much hate to think about. 

 By Olympia Duhart This is the letter no one wants. But for many families crushed by the pain of losing a loved one, this is also the letter that may bring a measure of solace.  More importantly, this is the letter that provides recognition by the government that the life taken – even by the victim’s own hands – was not lost in vain. This week, the White House announced that it would reverse its long-standing policy of not sending condolence letters to families of service members who commit suicide while deployed.  The move from President Barack Obama is one critical step toward reducing the stigma surrounding suicide and mental illness connected to military service. In his July 6 statement, President Obama recognized the complexity of the issue:  “The issue is emotional, painful, and complicated, but these Americans served our nation bravely.” Despite recent education and outreach efforts, suicide among military troops continues to soar. The Pentagon reported this week that close to 300 active duty service members committed suicide last year.  In his statement, the President defended the service members and called for an improved response to the conditions that contributed to their deaths. “They didn’t die because they were weak. And the fact that they didn’t get the help they needed must change,” President Obama said. 

By Anthony Niedwiecki, The John Marshall Law School In the push for marriage equality, LGBT activists often point to hospital visitation, inheritance rights, and tax benefits as some of the rights that are denied to same-sex couples.   In response, some states have extended some of the rights associated with marriage to same-sex couples through civil unions or domestic partnerships.  Illinois is one of the most recent states to provide same-sex couples the “same legal obligations, responsibilities, protections, and benefits as are afforded or recognized by the law of Illinois to spouses” by establishing civil unions.  750 ILCS 75/20.  So it came as a surprise when the Illinois Department of Revenue announced on its webpage that the new civil union law “did not change the Illinois income tax laws,” and specifically stated that couples in a civil union “may not file joint Illinois returns.” The Illinois Department of Revenue bases its reasoning on the requirement that a couple must be able to file their federal taxes jointly first, and same-sex couples are prohibited from jointly filing their federal income taxes because of the “Defense of Marriage Act”: IITA Section 502(c) permits joint returns only when a joint return is filed federally.  The federal Defense of Marriage Act (which is being challenged in the courts) does not allow joint returns by partners to a civil union, so the IITA does not allow joint returns either.

In an 8-0 decision authored by Justice Ginsburg (with Justice Sotomayor recusing herself), the U.S. Supreme Court held that “the Clean Air Act and the EPA actions it authorizes displace any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants.” The Court…

Written by SpearIt Last month in Brown v. Plata, the Supreme Court held that prison overcrowding in California caused conditions that violated the Eighth Amendment’s prohibition against cruel and unusual punishment.  Capping a legal saga that has entered its third decade, the case consolidated two class action suits, Coleman (1990), involving prisoners with serious mental disorders, and Plata (2001), involving prisoners with serious medical conditions.  By 5-4 majority, the Court affirmed an order by a three-judge federal court that required California to reduce its prison population to 137.5% of capacity, which at that time stood at nearly 200%.  To comply with the order, the state must still trim another 33,000 within two years. Or maybe not.  Although many see this decision as a key victory for prison rights activists, a more pessimistic read

By Olympia Duhart There is a popular adage about teachers that I think of almost every single time I attend a teaching conference or workshop:  “Teachers make terrible students.” And, often, my attendance at conferences aimed at improving legal education proves that aphorisms have staying power for a reason. I confess that at times I have been less than stellar in my approach to conference participation. And I’m not alone. Look around the room at most conferences and some of the law professors and instructors who make up the audience for any given session are just as “off-task” as the students are in their own classrooms. We are surfing the web.  Doodling. Whispering to the person in the next seat.  Or just plain spacing out. But a funny thing happened last week in New York. I attended a teaching conference, and I was overwhelmed by the level of engagement and energy that both the presenters and the attendees displayed. The conference was jam-packed with innovative teaching ideas. People were taking notes and asking questions.  Volunteers were eager to share their own ideas to help their colleagues. Law professors spending the day as students were paying attention. Kudos to the Institute for Law Teaching and Learning and to New York Law School for sponsoring such a successful conference June 1-3. The theme for the 2011 ILTL Summer Conference was “Engaging and Assessing Our Students,” and the session leaders breathed life into the theme. 

Written by SpearIt (Image taken from: http://www.ehow.com/info_7923062_classroom-activities-social-justice.html) In the city of Saint Louis, where I teach criminal law, segregation still grips chunks of the metro.  Half the population at-large is African American, so I was surprised when I showed up to my first class as a law professor and looked out at my students—twenty-five 1Ls in their first semester of study—but not one African American, no Latinos either; these two groupings are most affected by criminal law, yet had no representation in my inaugural class.  Although I had spent the summer exploring the city, my first-year course was perhaps the most segregated space I’d experienced so far, save the law school itself, where the janitorial staff is almost all African American and the tenured faculty is hardly. My cultural miscalculations were quickly put to the back burner since I also had miscalculated how much time it takes to prepare for a single class.  Previously, when I taught undergraduates, I could walk into class with three words on a piece of paper and wing a 50-minute lecture, but this was not the case now.  Instead it was like I was back in law school, my 1L year all over again, only now I was ringleader.

Written by Marjorie Cohn; originally posted on Truthout.org, Tuesday May 10, 2011 When he announced that Osama bin Laden had been killed by a Navy Seal team in Pakistan, President Barack Obama said, "Justice has been done."  Mr. Obama misused the word, "justice" when he made that statement.  He should have said, "Retaliation has been accomplished." A former professor of constitutional law should know the difference between those two concepts.  The word "justice" implies an act of applying or upholding the law. Targeted assassinations violate well-established principles of international law.  Also called political assassinations, they are extrajudicial executions. These are unlawful and deliberate killings carried out by order of, or with the acquiescence of, a government, outside any judicial framework. Extrajudicial executions are unlawful, even in armed conflict. In a 1998 report, the United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions noted that "extrajudicial executions can never be justified under any circumstances, not even in time of war." The U.N. General Assembly and Human Rights Commission, as well as Amnesty International, have all condemned extrajudicial executions.

Written by Benjamin G. Davis At the same time that the torture apologists are all over the news (Rumsfeld, Cheney (pere et fille), Rep. King, Yoo, Hayden, Panetta (slipperily), O’Reilly and his club, Hannity and his club, KeepAmericaSafe.com and their club), there are former military and CIA interrogators and officers and Chief SERE trainer Nance who are flat out rejecting the narrative that 1) KSM and Al-Libi’s torture procured the key information that led to Osama Bin Laden 2) that the Enhanced Interrogation Techniques worked at all. In a segment entitled “Dick Cheney defends torture methods” about 8 minutes in on the Ed Show, Ed Schultz asks Matthew Alexander, a former senior military interrogator who tracked down senior Al Qaida leaders in Iraq, about the Cheney defense. http://www.msnbc.msn.com/id/21134540/vp/42967008#42967008

Associate Professor of  Law Benjamin G. Davis was interviewed on Toledo 13ABC at 6h00 Action News on Thursday 5/5 and on 13ABC Roundtable with Jeff Smith on Sunday 5/8 on the legal issues regarding the killing of Osama Bin Laden.  On Thursday, he discussed the law related to the…

This tribute was originally posted on April 28, 2011 on intlawgrrls.  With my apologies, Diane Amann's tribute to Keith Aoki  from intlawgrrls was accidentally cross-posted on this site on May 4 under my name without my knowledge but with the best of intentions.  That post has been deleted and I am providing my tribute to him below. Hari Osofsky Over the last few days, I have struggled for words as I have attempted to process losing Keith Aoki from this world. I have been privileged to have him as a close friend and mentor, and he has deeply shaped who I am and how I approach my job as a legal academic. My condolences go out to all who feel this loss, especially his family, and I encourage the many people who his life has touched to give generously to support his daughters. The night I found out he was dying, though, there were words I needed to say to Keith, most importantly, thank you. Keith was always hard to thank, not because he didn’t richly and repeatedly deserve it, but because he would cut me off rapidly and decisively when I tried. He was profoundly modest and humble, as so many have said, but also exuded an irrepressible energy that demanded looking outward to the next challenge. Yesterday, at my last property class of the semester, as I looked out at students already stressed in contemplation of their upcoming Con Law exam, I decided that one of the best ways to thank Keith was to continue to pass forward some of what I have learned from him. I reflected to them about two of the qualities that Keith had which really influenced me: embracing creative passion and being there for people (and the world). I do so here again in a somewhat different variation.